US Sup Ct Holds that Annotations in Official State Code Ineligible for Copyright Protection

Earlier this week, in a 5 to 4 decision, the US Supreme Court held that the annotations in an official state code are ineligible for copyright protection. In Georgia v. Public.Resource.Org Inc., the Court affirmed that the annotations to the Official Code of Georgia Annotated are not eligible for copyright protection because they were created by the Georgia legislature in the course of its legislative duties and therefore covered by the government-edicts doctrine.

Faegre Drinker offers this analysis of the opinion:

There were two steps to the Court’s analysis. First, the Court concluded that the annotations are “authored” by the Georgia legislature because the Commission produces the annotations through a work-for-hire agreement with a private company [LexisNexis] and the Commission is an arm of the Georgia legislature for purposes of producing the annotations because it is created by the legislature, consists largely of legislators, and receives funding and staff designated by law for the legislative branch.

Second, the Court concluded that the Commission creates the annotations in the course of discharging its legislative duties. Even though the annotations are not officially enacted into laws through bicameral presentation, the Commission’s preparation of the notations is an act of legislative authority under Georgia law and provides commentary and resources that the legislature has deemed relevant to understanding the laws. The question, according to the Court, is not whether the work has been officially enacted into law, but whether the work is a product of the exercise of legislative duty.

As a dissenting Justice Thomas pointed out, 22 other states have used arrangements similar to Georgia’s to publish their own state laws.  See Ars Technica for more about the decision and its impact on code publishing going forward.